12/14/2018

Michael Dorf on Originalism and PrecedentMichael Ramsey

... [M]ost jurists who call themselves originalists do accept stare decisis. Scalia argued that doing so did not undermine his general approach because, he said, every interpretive approach must make room for precedent as an add-on. For reasons I've explored elsewhere, I don't think that answer quite works, but in any event, many contemporary originalists provide a different justification for adhering to precedent. As Justice Kavanaugh put it during the Gamble argument, stare decisis was "part of the original understanding . . . rooted in Article III." Unpacking that a bit, he means that when Article III vests "the judicial power" in federal courts, it vests the traditional decision making tools, including the idea that judges should adhere to stare decisis. Kavanaugh said more or less that during his confirmation hearing as well.

As I understand the position of contemporary originalists who accept stare decisis, they accept stare decisis more or less in the same way as less thoroughgoingly originalists do: in deciding a case, if there's a valid precedent on point you follow it, absent special considerations. Kavanaugh said during Gamble that to overrule a precedent the Court must at least find that it is not just wrong but "grievously wrong, egregiously wrong." That strikes me as a more or less fair account of what the Court's cases have said about stare decisis (though perhaps not what the Court has uniformly done.) But there's a justificatory gap between accepting some version of stare decisis on originalists grounds and accepting the particulars of modern stare decisis doctrine. If the reason for accepting stare decisis in the first place is that it was part of the original understanding, that entails that an originalist jurist accepts the version of stare decisis that was accepted at the Founding, which might differ from the modern doctrine in various respects.

The most sophisticated version of the argument I've just laid out comes from Professors John McGinnis and Michael Rappaport, in advocating what they call "original methods originalism." To be sure, there are various other sorts of reasons why originalist jurists might accept stare decisis to one degree or another and in various circumstances. For an illuminating canvass of the relevant issues, I highly recommend Professor Lawrence Solum's recent essay in Constitutional Commentary reviewing Professor Randy Kozel's book Settled Versus Right: A Theory of Precedent. It's possible that various self-styled originalist judges might accept stare decisis for one or more of the reasons that Professor Solum discusses, but at least Justice Kavanaugh appears to accept it for McGinnis/Rappaport reasons: stare decisis is part of the judicial power of Article III.

But now we come to what strikes me as an important problem: The original understanding of stare decisis is under-determinative on many key questions. Here I'll pose a few of them ...